James Nganga Mbugua v Kiambu Water And Sewerage Company Limited (Cause 829 of 2016) (Employment and Labour) [2022] KEELRC 1023 (KLR)
The bottom line
#A Kenyan court ruled a suspended water company boss was never actually fired, so he must resume duty, but gets no damages because he kept receiving full salary.
What this practically means
#Executive summary
#Key legal issues
#Whether the claimant was terminated from employment
No termination was proved; employment relationship subsisted
Termination requires complete severance of the employment relationship. Under section 47(5) of the Employment Act the employee bears the burden of proving termination and unfairness. The claimant produced no termination letter or correspondence, and admitted he continued drawing salary for some 80 months. Constructive dismissal was never pleaded though available. The claim of termination therefore failed.
Whether the claimant was seconded to Kiambu County Government
The purported secondment was ineffective; the claimant remained the respondent's employee
Secondment must be express and cannot be implied. The letter of 11th February 2016 merely referred the claimant's case to the CEC Member for further action and advised him to await instructions which never came, leaving him in limbo. The respondent also abandoned the disciplinary process midstream despite court orders allowing it to conclude the process within 30 days. The claimant remained the respondent's employee.
Entitlement to airtime and entertainment allowances during suspension
Claimed allowances are facilitative and dependent on actual performance of duties; not payable during suspension
Relying on the Court of Appeal in Richard Erskine Leakey, allowances dependent on actual service and performance of contract are not payable where the employee performs no duties. As the claimant was on suspension throughout and performed no duties, he was not entitled to the airtime and entertainment allowances claimed.
Legal principles established
#- In an employment relationship, secondment cannot be implied; it must be express
- Termination of employment means complete severance of the employer-employee relationship, which must be proved by the employee under section 47(5) of the Employment Act
- An employer must conclude a disciplinary process it has commenced and cannot abandon it midstream
Court orders
#- 1.Lifted the suspension and directed that the claimant resumes duty in his previous capacity
- 2.Declared that the claimant's employment was not terminated and his purported secondment was ineffective
- 3.Found the prolonged suspension unfair and unlawful but awarded no damages as the claimant was on full salary
- 4.Dismissed the claims for compensatory damages and airtime/entertainment allowances
- 5.Each party to bear its own costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment disputes (Employment Act; Employment and Labour Relations Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Nganga Mbugua v Kiambu Water And Sewerage Company Limited (Cause 829 of 2016) (Employment and Labour) [2022] KEELRC 1023 (KLR)", Case Analysis (2022). Cause No 829 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1023/eng@2022-01-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.